1. This second appeal arises out of a pre-emption suit instituted on 16-1-1963 by Gul Zaman respondent pre-empting the sale of land measuring 19 kanals 6 marlas under survey No, 3 situate in village Hassan Gallian Tehsil and District Muzaffarabad. The sale-deed was executed by Mir Alam in favour of Sher Zaman, the present appellant, on 24-1-1962 for an ostensible consideration of Rs, 3,000 ; out of which Rs, 1.600 changed hands before the Registering Officer. The pre-emptor- respondent claims the right of prior purchase on the following grounds :- (a)That the land sold is contiguous to his land ; (b)That prior to the sale-deed the pre-emptor had purchased a part of this land and thus has become a co-sharer.
2. It is alleged by him that the sale, in fact, took place for a sum of Rs, 1,600 only which is the market value of the land in suit and the higher amount mentioned in the sale-deed has been fixed to defeat a prospective pre-emptor.
3. The vendee contested the suit on all grounds and also pleaded waiver on the part of the plaintiff.
4. Following issues were framed :- (1)Whether the plaintiff possesses a right of prior purchase as compared to the vendee over the land in suit? O. P. Plaintiff.
5. (2)Whether the price of the land in suit was honestly fixed at Rs, 3,000 and paid? O. P. Vendee.
6. (3)In case issue No, 2 is proved in negative what is the market value of the land in suit? O. P.
7. Plaintiff.
8. (4)Whether the plaintiff has lost his right, if any, by consenting to the sale in favour of the plaintiff?
9. O. P. Vendee.
10. (5)Relief?
11. The learned Sub-Judge on issue No, 1 held that the plaintiff had no right of prior purchase over the land in suit. On issue No, 2 it was held that passing of Rs, 3,000 as consideration is not proved. On issue No, 3 it was held that the market value of the land in suit is to the tune of Rs, 3,000. Issue No, 4 was decided against the vendee.
12. On appeal before the learned District Judge additional evidence consisting of (i) a copy of the judgment of this Court dated 21-6-1956, in case entitled Shah Wall v. Mir Alam, (ii) a copy of the jamabandi pertaining to year 1986 Bikrimi, and (iii) a copy of Khasra Girdawari pertaining to years 1962-68 were allowed to be admitted on the basis of which the finding of the trial Court on issue No, 1 was reversed and it was held that the plaintiff had the right of prior purchase because by virtue of a decree in his favour he had become co-sharer in the Khewit. On issue No, 2 it was held that only Rs, 1,600 had been proved to have changed hands, and the plaintiff-pre-emptor is entitled to a decree for possession of the land in suit on payment of that amount. No finding was originally given by the learned District Judge on issue No,
3. Consequently, on appeal, by order, dated 1-3- 1971, the case was remanded to the first appellate Court for giving finding on issue No,
3. Now the District Judge has given his finding on issue No, 3 and has held that market value of the suit land is Rs, 1,600.
13. The admitted facts are that Mir Alam was the owner of Khewit No, 58, Khata No, 84-85 consisting of 3 separate Khasra Nos, i,e, 50, 52 and 53. This is also quite clear from the Revenue Record. Mir Alam instituted a suit for possession of land under survey Nos, 50 and 52. The plea taken by Shah Wali Khan brother of the plaintiff was that the land was in their adverse possession since 1995 Bikrimi.
14. The plea of adverse possession was finally accepted by the judgment of this Court dated 21-6-1956 and it was held that the defendant had been in adverse possession of the suit land since Maghar 1995 as his possession had ripened into ownership and the plaintiff's suit being barred by time should have been dismissed. In other words the title of Mir Alam by virtue of prescription was extinguished in view of the above-mentioned judgment over land under Survey Nos, 50, 52 alone and corresponding possessory title accrued in favour of Shah Wali Khan, a brother of present plaintiff. It is not clear from the copy of the judgment whether all the heirs of Faqir Muhammad father of Shah Wali were impleaded in that suit as party or not, but it appears from Khasra Girdawari 1962-68 that Gul Zaman is recorded as one of the owners of the land under Survey Nos, 50 and 52. Therefore, for the sake of argument it would be assumed that Gul Zaman pre-emptor also acquired possessory title over that land. Then the question that would require determination in this case would be, in the first instance, whether the respondent-plaintiff can be held entitled to right of prior purchase under the provisions of section 14 of the Right of Prior Purchase Act of 1993 Bikrimi. (Hereinafter called the Act). Section 14 of the Act enumerates person in whom right of prior purchase respectively vests in respect of the sale of agricultural land and village immovable property. It has got three sub-clauses. It is conceded by the learned Advocate on behalf of the respondent that respondent-pre-emptor does not fall under clause (a) but he contends that he falls under clause (b) fourthly and clause (c) firstly. For the convenience of discussion clauses (b) and (c) of section 14 are reproduced below :- "Clause (b) : When the sale is of a share out of joint property and is not made by all the co-sharers jointly-- Firstly : in the lineal descendants of the vendor in order of succession ; Secondly : in the co-sharers, if any, who are agnates in order of succession ; Thirdly : in the persons, not included under firstly and secondly above, in order of succession, who but for such sale, would be on the death of the vendor entitled to inherit the land or property sold ; Fourthly : in the co-sharers.
15. Clause (c) : if no person having the right of prior purchase under clauses (a) and (b) exercises it then :- Firstly : in the owners of the mahal wherein such agricultural land or property is situate."
16. Clause (b) regulates all the following categories of the persons in whom rights to pre-empt vest.
17. Thus it would appear that to succeed as co-sharer under clause fourthly ; a pre-emptor must show :- (a)that the sale is of the share of joint property.
18. (b)it is not made by all co-sharers.
19. In other words he must prove that he was joint owner of the property sought to be pre-empted. The learned Advocate for the pre-emptor-respondent argued that by virtue of a decree of adverse possession passed by this Court on 21-6-1956 with regard to land under Survey Nos, 50 and 52 the pre-emptor became a joint owner in other Survey number falling in the same khata of Mir Alam and also by a sale-deed executed by Mir Alam in favour of the pre-emptor. Whether the sale-deed Exh. D/2 is a genuine document or not is a question to which I would revert immediately. However, the pre-emptor cannot succeed on the basis of the sale-deed Exh. D/2 for the simple reason that this sale-deed was executed subsequent to the sale-deed sought to be pre-empted. A pre- emptor in order to succeed must possess his superior right of pre-emption at three crucial dates (a)at the time of the sale; (b)at the time of the institution of the suit 1 and (c)at the time of the decree of the first Court provided a decree is passed in his favour.
20. I am supported in this view by Harbhagwan Das v. Sardar Pratap Singh in which it was held that :-- "A pre-emptor in order to succeed to his claim must not only possess a superior right but must retain the superiority on the basis of which he claims to pre-empt also at the stage of the suit and the stage of the decree if the pre-emptor is only to show his superior right than vendee he cannot succeed,"
21. In PLD 1967 Azad J & K 7 it has been held at page 10 that :-- "It is agreed that a pre-emptor in order to succeed in a preemption suit must possess his preferential right not only on the date of sale but also at the date of institution of suit as also on the date of the decree provided decree is in his favour."
22. It is not open to a pre-emptor to defeat a vendee by improving his position after sale. In AIR 1925 Lah. 56 it is held :- "The plaintiff's right should be determined by the situation existing at the time of the sale, this may lead to strange results but the whole law of pre-emption is an anachronism."
23. I, therefore, hold that the pre-emptor in order to succeed musts possess his superior right on the date of the sale and it is not permissible for him to defeat a vendee by improving his status.
24. It is correct that a decree of possessory title on the basis of adverse possession over land under Survey Nos, 50 and 52 was passed in favour of Shah Wali Khan against Mir Alam--the previous owner, but that decree extinguished the title of rightful owner and conferred a good title upon wrong-doer to the extent of those plots only over which trespasser were holding possession. The title which is acquired by adverse possession is new title in strictness of law. It is not the old title which is transferred to the new owner but only corresponding in quantity and quality of the old title and that too to the extent of the property involved therein. A trespasser, therefore, on the basis of adverse possession over two separate plots of land of the true owners cannot become joint owner in the other plots belonging to the true owner because the possessory title on the basis of hostile possession over two plots would not extend over other numbers in the same khata and, therefore, cannot be held to be a co-sharer and thus vested with a superior right on that count.
25. It is conceded that a right of pre-emption on the basis of contiguity is not recognised in respect of agricultural land and village immovable property under the provisions of Right of Prior Purchase Act as in force in Azad State of Jammu and Kashmir, therefore, he cannot succeed on the basis of1 contiguity.
26. The next point is whether the pre-emptor can succeed under clause (c) firstly of section 14 as owner of the mahal wherein such agricultural land or property is situate ; in the suit filed by the respondent-pre-emptor he had not claimed the right of prior purchase on that ground i,e, owner of mahal. A pre-emptor cannot succeed on a ground different than the one on which he based his claim in his plaint. The right of pre-emption being a predatory right no equity is involved, therefore, he cannot succeed on a ground different than the one on which right of prior purchase is claimed by him. I am supported in this view by PLD 1960 Lah. 975 and a Full Bench case of this Court entitled Abdul Aziz v. Abdul Razaq and others wherein it is held that the plaintiff cannot be allowed to succeed on the ground not taken in the plaint.
27. Even otherwise there is nothing on the record to show that the vendee is not owner of the mahal wherein such agricultural land is situate. The plaintiff in para. 4 of his plaint has impliedly admitted that the vendees are also owners in the mahal when he says that the land of the vendee is 3 jareeb away from the land in suit. It is not controverted that the vendee has the agricultural land in the same village. As such both would be deemed to be owners of the mahal. If a pre-emptor and vendee both are owners of the mahal in which land is situate, their right being on equal footing, pre-emptor cannot claim preference over vendee whose rights are at par with him. Of course when a rival preemptor, whose rights are equal, pre-empts a sale, section 17 of the Act, regulates the distribution of pre-empted land or property. It would be fair and equitable to allow them to share the pre-empted property equally. But it would be wrong to apply that doctrine to a case where rights of pre-emptor and vendee are on equal footing and allow the pre-emptor to have the property divided. If a vendor has sold a land or property to a person who has a right of pre- emption, no right of pre-emption accrues to any other person who has equal or inferior rights of prior purchase. In other words a pre-emptor in order to succeed must be invested with superior rights and not equal rights. I am supported in this view by a ruling of Allahabad High Court reported as AIR 1932 All. 133 wherein it has been laid down that :-- "There is no right of pre-emption inter se if both the pre-emptor and the vendee had equal right to purchase the property."
28. In the present case the plaintiff-pre-emptor has not been able to show that he has superior rights than the vendee to purchase land and he could not, therefore, succeed in his claim.
29. The finding on issue No, 2 of both the Courts below is that out of Rs, 3,000, the price stated in the sale-deed, only Rs, 1,600 have been proved to have changed hands. There is no satisfactory evidence as regard to the passing of the remaining amount of Rs, 1,400. The admission made by the vendor before the Registering Officer as well as before the scribe of the deed is not binding on the pre-emptor who was not a party to the deed. The onus of proof that the price stated in the sale-deed, was fixed in good faith and paid lies heavily upon the vendee. Under sections 103 and 106 of the Evidence Act it lies upon the vendee as against the pre-emptor to prove that the price was paid. A large sum of Rs, 1,400 is alleged to have been paid without a receipt. The witnesses cannot tell even the month or the date when this amount was paid to the vendor. The evidence produced to prove this payment is oral and cannot be considered to be satisfactory. There is, therefore, no reason to differ with the finding of the Courts below on issue No 2.
30. In the absence of the proof of price being genuinely paid it is the market value that determines whether the price has been fixed in good faith. On Issue No, 3 the trial Court determined the market value of the suit land on the basis of sale-deed Exh. P.E. for the reason that the land conveyed under this deed possessed similar potentiality as the land in suit. The learned District Judge reversed the finding of the trial Court as regard to the market value relying on Exh. DA/2 that was executed for a part of the land from the same Khewat only one month after the land in dispute but he lost sight of the fact that this sale-deed executed by Mir Alam son of Shah Wali in favour of Gul2 Zaman the pre-emptor relates to the land over which Mir Alam's title was already extinguished on account of a decree passed by this Court on 21-6-1956 dismissing his suit for possession.
31. Consequently a title by adverse possession had already vested in Gul Zaman--the pre-emptor. Mir Alam vendor in this case had nothing to sell and Gul Zaman in fact purchased nothing because he alongwith his brother had already acquired possessory title over this land by prescription. It appears that the sale-deed was obtained about the land over which the vendee had already possessory title as a device to prove the market value of the land in suit. Therefore, the finding of the District Judge about the market value cannot be maintained because it is based on a fake document that was executed by a person without if in the property, in favour of a person who was already vested with ownership.
32. In view of my finding on issue No, 1 the appeal is accepted, the judgment and decree passed by the learned District Judge is set aside and the decree passed by the trial Court dismissing the suit Is restored.
33. A 1 R 1938 WI. 242 PLD 1971 Azad & K 20